The Model Toxics Control Act (MTCA) has been cleaning up contaminated sites in Washington State for 30 years. On December 10, 2019, Beveridge & Diamond and the Environmental Law Institute will be hosting a seminar (MTCA 30) to celebrate the success and examine the future of the state’s cleanup statute with some of the state’s leading experts. In advance of the seminar, B&D is publishing a series of articles focused on MTCA.
The Voluntary Cleanup Program: A Popular Pathway
Washington’s Voluntary Cleanup Program (VCP), now 22 years old, has been in high demand. Between 1997 and 2015, over 5,000 sites were enrolled in the program. Under the popular program, contaminated sites may be cleaned up independently and voluntarily, with the Department of Ecology (Ecology) providing technical assistance and written opinions on the sufficiency of cleanup under MTCA. Over the last decade, the demand has resulted in long waitlists and challenges in moving a site through the program, particularly in the Puget Sound region where the real estate market has been booming.
Under the VCP, parties pay for the work of the Ecology site manager, with the goal of receiving a No Further Action (NFA) letter from the agency when the investigation and cleanup is complete. NFA letters can provide performing parties, real estate transaction participants, lenders, and other stakeholders with certainty that cleanup requirements have been met. MTCA also envisions that sites may be cleaned up without any agency involvement whatsoever. However, parties may be hesitant to pursue cleanup without agency involvement due to the value of an NFA in real estate and lending markets and concerns that truly independent cleanups will not be deemed adequate should Ecology become involved later.
VCP Challenges: Increased Demand, Complex Sites, and Staffing and Funding Issues
Though the waitlist to get into the VCP has subsided recently, there are over 70 sites that have been accepted into the program but for which no site manager is available. The VCP backlog issues have been so acute historically that earlier this year the state legislature amended MTCA to create an “expedited” VCP option to alleviate the pressure. In 2017, the state also authorized the Pollution Liability Insurance Agency (PLIA) to apply its technical assistance program to and issue opinion letters for certain sites with petroleum contamination, which has diverted some sites away from the VCP. Previously, Ecology took steps to limit access to the VCP and to speed up review times by requiring participants to follow strict submission guidelines.
Depending on the complexity of a site and when a site enters the VCP, the time required to obtain NFAs can take years, well beyond the timeframe needed for financing, acquisition, and construction, which can be a significant deterrent to investing in contaminated properties. Even the time it takes for Ecology to respond to written requests for an opinion – often after much of the cleanup is already complete – can be prolonged. In an October 2016 report to the governor and legislature, for example, Ecology determined that between 2011 and 2015 it took around 90 days to receive a response from the agency. Yet, this statistic does not reveal whether the requested NFAs were obtained or how efficiently sites in the VCP moved through the various stages of cleanup.
In recent years, Ecology has identified several factors that it believes have contributed to difficulties with the VCP, including the increasing complexity of sites in the program, staffing shortages and turnover, and unpredictable funding. When the VCP was conceived, Ecology stated that the VCP was best suited for “routine cleanups where a cleanup technology is easily identified, such as a leaking underground storage tank site.”
Legislative Fix: Will the Expedited VCP Option Deliver?
In April 2019, MTCA was amended to allow Ecology to develop an expedited VCP process for customers who pay more for the extra speed. The money paid for the expedited process will go into a dedicated account to support the expedited program. Ecology is authorized to waive fees when the cleaned-up properties are used to build affordable housing. To encourage faster implementation of this expedited process, the amendments allow Ecology to use interpretive guidance while rules are being developed. To date, no guidance has been issued.
Time will tell whether this expedited program will facilitate cleanups under accelerated timelines. If demand for the expedited program is high, Ecology will need to make sure it is charging fees that can fund appropriate staffing levels. Ecology also may face choices about how to allocate resources without drawing attention away from other sites in the VCP that are also worthy of cleanup but where performing parties may not be able to afford additional fees. These planning challenges also raise the possibility that the expedited option will simply move backlogs from one administrative pathway to another.
PLIA’s Petroleum Technical Assistance Program: An Emerging Alternative to the VCP
When PLIA began enrolling low-risk petroleum sites in its Petroleum Technical Assistance Program (PTAP) as an alternative to the VCP, initial interest in the program was high. The program requires a one-time, upfront fee of $7,500. PTAP also has a portfolio management option, which is available for entities that enroll 10 or more sites in the program.
Currently, there are about 250 sites in the PLIA program. Most of these sites were enrolled in 2018. Around 75 have been enrolled in 2019, possibly reflecting a dampening of enthusiasm. Of the enrolled sites, nearly 40 have been designated as “complete” by the agency.
Although early site processing times were relatively efficient, as the popularity of the VCP alternative has grown, based on anecdotal evidence, the time to obtain opinions and reach site closure has extended as well. In addition, the requirements for cleaning up a contaminated site are the same – whether the technical assistance is provided by Ecology or PLIA. PTAP does not offer an easy way out.
With over 6,000 known and suspected contaminated sites in Washington still in various stages of cleanup, over 200 new sites identified each year, and cleanups that can last decades, working on creative, effective, and efficient solutions for remediating and closing out contaminated sites is vital.